NOTE: This article is meant in no way to provide legal Counsel.
The divorce process is one of the most emotionally straining events most people may endure in their lifetime. By nature, the process calls into jeopardy some of the most elemental parts of a person’s identity: Housing, jobs, children, or relationships. Everything is placed under a microscope, and when people feel this stress, they tend to react in ways that they otherwise would not have.
As our world becomes increasingly more online, it is easy to vent frustrations to friends and followers online. The increase in social media usage and confusion around what can be used during court proceedings can lead many to wonder: to what degree should I limit my online presence during the divorce process? Why should I limit posting at all?
To help answer these questions, our office has compiled a list of frequently asked questions, as well as a general list of Do’s and Don’ts while going through the divorce process.
The biggest takeaway that you should get from this article is this: DO NOT post anything to social media that you would not show directly to the Judge.
Why is it important that I limit my online presence at all?
One of the most common questions we get about social media usage is: “why does it matter that I change how I present myself online?” and the answer is that it did not used to matter. In the age of Myspace and LimeWire, an online post was not necessarily a hot button issue with the courts. But as our world has become increasingly more online, the courts have tended to consider a person’s media presence and have increasingly scrutinized posts online.
Why does it matter?
Your posts, regardless of what or where they are, are a form of speech. Your statements, either online, or in the real world can be introduced as evidence against you in court. What you say or do on social media can come up in several different ways during a divorce or parentage proceeding. Posts regarding children, housing, big purchases, and new relationships can be used in court as evidence against you, and can be extremely costly. So how can you prepare yourself for the best outcome possible?
Be wary of new “friends.”
Be cautious to accept any new online connection, whether it be a friend, follower, or subscriber. Outside access to your social media during the divorce period should be limited to a standard that you feel most comfortable with.
Lawyers may get in trouble if they friend you
Lawyers are bound by a strict ethical code.[1] While explicit language on following, friending, or subscribing has not yet been drafted, discussion as to when a lawyer crosses the ethical line has been discussed heavily.[2] The SparkNotes version of all that discussion? Lawyers who send friend requests to opposing parties are likely in violation of their ethical code, but a simple search of a person likely does not.[3]
Limiting access to your social media, whether it be restricting access to your page, or simply not posting, may protect you from having your posts brought against you in the court room. While limiting access to your social media provides some protections, it does not mean that lawyers and the Court cannot see screenshots of private posts. Attorneys can request documentation of social media posts if they have indication of its existence.
Don’t post about parenting, good or bad.
Parents often include their children on a significant percentage of their social media, and doing so can be a real problem. Remember: you should not be posting anything that you would not show to the Judge.
How can a simple post create an issue in court?
To help explain why it is so important to limit posts about the children, consider the following scenario:
Wanda and Hank Doe were married in 2006, and have two children, Franklin and Sandra. Recently, Hank has been seeing a woman named Mary. Wanda found out about Hank’s affair, and has filed for divorce. Hank moved out of the marital residence, and has moved back in with his parents. Wanda and Hank have a signed agreement that Hank will not introduce the children to Mary until Wanda is comfortable with doing so. Hank posts the following to his Facebook account:
Wanda and Hank are friends, and Wanda sees this post. She has email correspondence from Hank that he was planning to take Franklin and Sandra to the Doe family reunion. Worried that Hank has violated their agreement, Wanda takes a screenshot of the post, and sends it to her attorney.
Wanda’s attorney views the Facebook post, and believes it to be sufficient to prove that Hank violated the party’s agreement. She then files an emergency motion to restrict Hank’s Parenting time.
Hank gets a call from his attorney, notifying him of the emergency motion. In response, he deletes the original post, and makes another.
Wanda sees this post as well and sends it to her attorney, and notes that Hank deleted the original post.
At the emergency hearing, Wanda’s attorney brings up both of the posts, and the fact that Hank deleted the first. The Judge questions Hank specifically as to why he destroyed evidence, and what he meant in his second post. The Judge finds that Hank both destroyed evidence, and made threatening statements to Wanda. The Judge further finds that Hank’s parenting time should be restricted because of the threatening nature of his Facebook post, and that Hank should be responsible for the fees associated with the emergency hearing that total over $1,000.00.
Can you understand why Wanda was upset by the original Facebook post? It is important to consider that even positive statements can have negative implications, and to set yourself up for success, it is best to only post content that you would feel comfortable submitting directly to a Judge.
Limit external tags.
Your presence on social media is not bound by just what you post. Images and tags can be just as problematic for you as having posted them yourself. Consider the following Instagram post made by Wendy’s friend Clara:
Hank does not follow Clara on Instagram, but does follow Wendy, and sees the post because she is tagged. He calls his attorney, who advises that Wendy may have spent marital funds to pay for the trip, and Hank could be reimbursed for half of the money that Wendy spent. Pursuant to applicable law, Hank’s Attorney requests bank statements from Wendy’s attorney, and finds that Wendy spent $20,000.00 for both women to go to Brazil. The Court later finds that Wanda dissipated the $20,000.00 and Orders her to repay Hank $10,000.00.
Best practice would be to avoid spending marital funds for non-marital purposes, but it is important to note that even less obvious posts can result in issues just as well. Talk to your loved ones about limiting online interaction with you for the duration of the divorce.
Do not delete harmful contact after it has been posted.
It seems counterintuitive to the rest of the article, but deleting previously posted content may harm you more than it helps you. When you delete a post made to social media, it may be considered destruction of evidence, which comes with a hefty punishment. If you have previously made posts that you think may be against your best interest, for whatever reason, it is best to presume that they have some sort of digital copy of it. Deleting the post then may create an issue when the opposing party attempts to introduce the post.
What do I do if I did say something online that might come up?
First, take a deep breath. We have all said things that we eventually regretted. If you did post something online that you think may be brought against you, do not delete the post. It is likely that if your post is brought up, the judge will ask you questions regarding the contents of the post. Talk to your lawyer about how you can best present yourself when this happens.
Second, Increase security on your social media account. Remember: Lawyers violate their ethical rules by sending friend requests or trying to gain additional access to your social media, but they can conduct a simple search. By making the post more difficult to access via search, the lawyer will need to request discovery from your attorney for any social media posts.
Before trial, the opposing party will need to submit a document containing all evidence that they plan to bring against you. If you see your post among the evidence, talk to your attorney about how you can best situate yourself for a positive outcome.
Online Do’s and Don’ts
Do
- Make your social media private.
- Be cautious of unknown friend requests.
- Save your posts as a draft to give yourself more time to consider if the content is appropriate.
- Talk to an attorney before posting anything that may be at issue in your divorce.
- Only post things that you would feel comfortable sharing with a judge.
Don’t
- Let your emotions dictate how you present yourself online.
- Make threatening statements regarding your spouse or children.
- Post videos of yourself participating in illegal activity.
- Share images or your spouse that show them in a compromising position.
- Repeatedly tag your spouse on any form of social media.
Remember, your online presence is an important representation of yourself. The posts that you make on social media can make its way into the courtroom, so it is important to remember to only post things on social media that you would be comfortable sharing with a judge.
If you have any questions about how you should present yourself on social media, or are looking for an attorney to represent you during your divorce, please contact our office. With over 40 years of experience, the Nordgren Law Office has the knowledge and experience to get you the outcome you are looking for.
[1] Model Rule 8.4 of the American Bar Association, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/
[2] From https://www.hbblaw.com/wp-content/uploads/2020/09/The_Ins_and_Outs_of_Social_Media_in_Litigation.pdf
[3] https://www.natlawreview.com/article/6-tips-to-navigate-social-media-ethics-lawyers